A couple of days ago,  I came across the website generated.photos (via the Verge) a new service that offers 100.000 computer generated portrait images and positions them as an alternative to traditional stock photos. The Verge article highlights the fact that the pictures can be used “royalty free” and the generated.photos website claims that “Copyrights … will be a thing of the past”. This made me postulate on twitter that we might very well be witnessing the emergence of an “auto-generative public domain”.

It has since become clear that the creators of generated.photos do not intended to contribute the output of their algorithms (or for that matter the algorithms themselves) to the public domain: By now the website has been updated to note that the images are available for non-commercial use only. A new terms and conditions page states that “Legal usage rights for content produced by artificial intelligence is a new, largely unknown domain” only to go on to list a number of restrictions on the use of the “materials and software” made available on generated.photos.

As noted in the terms of conditions the copyright status of images (and other types of artworks) that are autonomously created by AI-powered software is largely unsettled. As Andres Guadamuz notes in his excellent overview post on the topic, there are generally two schools when it comes to the question if computer generated artworks are (or should be) protected by copyright. One school argues that copyright protection only attaches to works that have been created by humans and as a result computer generated artworks can by definition not be copyrighted. The other school points out that such works are not created without any human intervention (someone needs to start up the software and set basic parameters) and that whoever initiated the generation of these works should be considered the creator and receive at least a minimum level of (copyright) protection as a reward for their investment.

In the case of generated.photos it is evident that the people behind the project have made a considerable investment into the project. The website states that they have shot more than 29.000 photos of 69 models that have subsequently been used as a training set for the software. Judging by notes on their website, the 100.000 images made available on the website have been created using the open source generative adversarial network StyleGAN that is freely available via GitHub. It remains to seen if creating photos (which are copyright protected) that are then used to train a out of the box GAN does indeed mean that the output of the network is (a) protected by copyright and (b) that the copyright belongs to the entity that trained the GAN.

While it seems to be at least possible that the creators of generated.photos do have a legitimate copyright claim in their output, that does not necessarily invalidate the idea that we are witnessing the emergence of an auto-generative public domain, i.e circumstances in which computer algorithms produce a (possibly endless) stream of artworks, that are indistinguishable from human created works and that are free from copyright and can be used by anyone for any purpose.

In terms of quality, the images provided by generated.photos are still far from indistinguishable from human made stock photos, but it is clear that it is only a matter of time before the technology gets good enough to produce high enough quality outputs at scale. Projects like the next Rembrandt illustrate this development is not limited to stock photography but will likely happen across the full width of human creative expression.

Such a development would dramatically upend a large number of creative professions. It seems like it will only be a matter of time before stock photography and other forms of creative work where the primary draw is not the specific style of a particular creator will be replaced by AI-generated output that will cost almost nothing to create. Once AI powered systems will be able to deliver high quality creative output at zero marginal cost the question if these outputs are protected by copyright or not will be largely meaningless (a single system releasing its output into the public domain will render any attempts to enforce copyright futile).

From the perspective of those making a living by creating stock photos, background music and other forms of creative work that is about to be eaten up by AI, the emergence of this “auto-generative public domain” must feel dystopian. Under these conditions the primary question that we must ask ourselves is not how we can fit works created by computer algorithms within the framework of copyright law. Instead we should ask ourselves how we can create the conditions for human creators to leverage these technologies as tools for their own creative expression. Instead of mourning a future in which humans are no longer employed to shoot endless variations of the same stock photos, we should look out for entirely new forms of creative expression enabled by these tools.

Here is a suggestion for a bit of summer reading: The first thing that you need to read (in order to polish up your knowledge of the water rights issues connected to the Colorado river, a.k.a the law of the river) is this New Yorker article from back in may: Where the River Runs Dry – The Colorado and America’s water crisis by David Owen.

Once you are done with this you need to aquire a copy of Paulo Bacagalupi’s new novel The Water Knife and find yourself a place with a swimming pool full of crystal clear water and amper supplies of bottled spring water (you can of course read this book in any other setting, but it is much more enjoyable that way). If you want to maximize your reading pleasure/guilt even more you should also make sure that you have a bowl of pistachio nuts at hand.

So why the swimming pool and the bottled water? That is because The Water Knife is set in a dystopian near future where the lack of water has lead to ecological disaster, civil war like unrest and massive human suffering in American south west. States like Texas have become uninhabitable with their populations fleeing into neighbouring states which try to keep the refugees away while struggling to provide water for their own populations. Against this backdrop powerful water barons fight over water rights that grant them the rights to tap water from the Colorado river to provide water for giant, fully enclosed private real estate projects. The novel follows the story of an enforcer of one of these water barons (a so called ‘water knife’) as he becomes entangled in a mesh of conspiracy and mistrust in the dying city of phonic, Arizona.

For me The Water Knife excels both at creating a credible near term dystopia and as a thriller (i even liked the ending which is a rare thing with thrillers).

To increase your reading pleasure i would suggest that once you are about two thirds through the book (around chapter 39 or so) you take a break and listen to episode 640 of NPRs planet money podcast: The bottom of the well, in which the planet money team examines the economic effects of the current drought in California. As i listened to the podcast i was rather surprised to find out that some of the elements of Bacagalupi’s novel (public relief pumps, water consultants hawking state-of-the-art technology to reach deeper and deeper into dwindling aquifers) are already a reality in parts of California.

The planet money episode makes it painfully obvious how our economic system (a.k.a. capitalism) is set up to create the economic incentives to deplete scarce water resources in drought stricken areas for private gain (this is the moment where you want to reach for a hand full of pistachio nuts) and is possibly the most vivid explanation of the concept of the tragedy of the commons that i have come across to far.